So what exactly is going on behind the scenes in the Viacom-Google dustup?

Viacom
and Google released a number of previously
sealed documents last week on Viacom's lawsuit against
YouTube and the opposing counsel are taking the legal battle to the
internet with statements and counter-statements. Zahavah Levine
(YouTube Chief Counsel) posted a
blog entry that made some seemingly serious counter
allegations against Viacom. Levine wrote that Viacom had
secretly uploaded Viacom-owned video clips to YouTube and is suing
Google for illegally hosting those same video clips on YouTube.

Zahavah
Levine:"Viacom's
efforts to disguise its promotional use of YouTube worked so well
that even its own employees could not keep track of everything it was
posting or leaving up on the site. As a result, on countless
occasions Viacom demanded the removal of clips that it had uploaded
to YouTube, only to return later to sheepishly ask for their
reinstatement. In fact, some of the very clips that Viacom is suing
us over were actually uploaded by Viacom itself.

Given
Viacom’s own actions, there is no way YouTube could ever have known
which Viacom content was and was not authorized to be on the site.
But Viacom thinks YouTube should somehow have figured it out. The
legal rule that Viacom seeks would require YouTube -- and every Web
platform -- to investigate and police all content users upload, and
would subject those web sites to crushing liability if they get it
wrong."

On
the surface, this looks bad for Viacom and Jason
Mick saw this as the "smoking gun" against
Viacom. Google is essentially arguing that because some of the
infringing Viacom clips were uploaded by Viacom or marketing firms
hired by Viacom, there is no possible way for Google to know which of
Viacom clips were Viacom-authorized and which weren't. Worst
yet, it sounds like Viacom is actually suing Google for infringing
material that they posted on YouTube themselves which sounds like a
case of manufactured evidence. But this is a good example of
why we really need to also hear Viacom's side of the story to get a
clear picture of what is going on.

"This
whole exercise is a red herring. First, none of the infringing clips
at issue in this lawsuit were uploaded to YouTube by Viacom or its
authorized agents. Second, the number of uploads to YouTube that
Viacom did authorize (for which Viacom is not suing for infringement)
was very limited compared to the 63,000 unauthorized infringing clips
claimed by Viacom in this litigation. Third, of that small number of
authorized clips, virtually all were uploaded to YouTube using
official Viacom account names, and YouTube was fully aware of this
fact."

Viacom states that Google
was "fully aware" of the Viacom-authorized account names
that uploaded virtually all of these videos. Viacom also seems
to be contradicting Google's claim that Viacom is suing Google
over clips that it had uploaded itself by saying that none of the
clips uploaded by Viacom are part of the 63,000 infringing clips
named in the lawsuit. A reasonable way to interpret these
seemingly conflicting statements is that the specific clips named in
the lawsuit were not uploaded by Viacom or Viacom authorized third
parties, but some of the named infringing clips were the same content
as the Viacom-authorized clips. For example; Viacom uploads a
clip from Comedy Central to YouTube for promotional purposes, but
someone else not authorized by Viacom also posted the same Comedy
Central clip on YouTube.

This
does not get Google off the hook because even if Viacom uploaded a
particular clip and made it free to see on YouTube, that does not
make it legal for anyone to post that same clip or any other Viacom
clip. However, YouTube or any other website cannot be held
liable for user-uploaded content for which they have no knowledge of
under the Safe Harbor provision of the Digital Millennium Copyright
Act (DMCA).
But the key term "no knowledge of" is where YouTube and
Google have some serious problems based on the email evidence.

Based
on the emails
evidence, both YouTube (pre-acquisition) and Google
(post-acquisition) did have very specific knowledge of infringing
content. The Co-founders of YouTube and employees at Google had
detailed discussions with each other about very specific infringing
content and they made the conscious decision to leave that infringing
content on the site. Co-founder Steve Chen told fellow
co-founders that they had to grow traffic at all cost to sell YouTube
(which they did and made a lot of money). Chen wrote that
because 80% of their traffic depended on infringing content, they
should leave it up until the content owner notified them to take it
down. Even more damning is the fact that YouTube product
manager Maryrose Dunton posted a copyrighted clip of Ed Sullivan and
when YouTube finance director Brent Hurley asked her to take it down,
she replied "maybe I'll just make it private ;)".

This
mountain of email and IM evidence seems to be the same kind of
evidence that damned Napster if not worse. Had YouTube and
Google employees simply played dumb by hearing no evil and speaking
no evil (at least not in discoverable form such as email or Instant
Messaging), or at least pretend they didn't see any illicit content
even if they did, they probably wouldn't be in this mess. The
Viacom secretly uploaded defense probably won't save them and the
court could make this very painful for Google when it's all said and
done.

Comments

Threshold

Username

Password

remember me

This article is over a month old, voting and posting comments is disabled